Sajan Kumar Bhagat vs Sanjay Kumar Bhagat
2022 Latest Caselaw 264 Cal

07.   02.02.2022
      Ct. No.08
      Tanmoy


                                      F.M.A.T. 758 of 2017
                                               With
                      IA No: C.A.N. 1 of 2017 (Old No: C.A.N. 6438 of 2017)
                                               With
                      IA No: C.A.N. 2 of 2017 (Old No: C.A.N. 8958 of 2017)

                               Sajan Kumar Bhagat, HUF & Ors.
                                          -Versus-
                              Sanjay Kumar Bhagat, HUF & Anr.

                                   (Through Video Conference)



                    Mr. Saptansu Basu, Ld. Sr. Adv.,
                    Mr. Ayan Banerjee, Adv.,
                    Mr. Raja Adhikary, Adv.

                                ...for the respondent no.1/defendant no.1.

In Re: IA No: C.A.N. 2 of 2017 (Old No: C.A.N.

8958 of 2017).

There is a delay of 43 days in preferring the

appeal.

We have perused the petition for condonation of

delay. We are satisfied with the explanations offered for

not being able to file the Memorandum of appeal within

the period of limitation.

On such consideration, the delay of 43 days in

filing the appeal is condoned.

The application being IA No: C.A.N. 2 of 2017 (Old

No: C.A.N. 8958 of 2017) in F.M.A.T. 758 of 2017 is

disposed of.

In Re: IA No: C.A.N. 1 of 2017 (Old No: C.A.N.

6438 of 2017) With F.M.A.T. 758 of 2017

The appellants are not represented, nor any

accommodation is prayed for on behalf of the

appellants. The appellants are also not represented on

the earlier occasions. In view of our earlier order dated

January 5, 2022, we took up the appeal along with the

connected applications.

Mr. Saptansu Basu, learned Senior Counsel, has

appeared on behalf of the respondent no.1/defendant

no.1. The appeal is arising out of an order dated April

24, 2017 passed in a suit for declaration and perpetual

injunction. The said petition was rejected on the

ground that there is a case and counter-case between

the parties with regard to the execution of the family

settlement and/or oral partition in respect of the

plaintiff no.3, firm.

The learned trial Judge has taken into

consideration the judgment of this Court in Meena Bibi

@ Anwari Begum & Others Vs. Hilda-Glady-Sylus &

Others, reported in 2006 (2) CHN 24. In the said

reported judgment it was held that a mini trial at the

stage of interlocutory application is not desirable and

the Court is required to come to a prima facie view that

in view of the allegation of forgery by the defendants

against the plaintiffs whereof a criminal proceeding was

instituted and the learned Metropolitan Magistrate had

proceeded with the criminal complaint which was not

desirable to pass an order of injunction in favour of the

plaintiffs. The allegation of the defendant no.3 that the

plaintiff opened a new account by forging the signature

of the defendants and the said criminal act was a

foundation of the complaint before the learned

Metropolitan Magistrate. The learned Judge has, for the

purpose of deciding the injunction petition,

summarized the facts and refused to pass a temporary

injunction.

We do not find any reason to interfere with the

discretion passed by the learned Judge by disposing of

the said injunction petition. We find from the impugned

order that April 27, 2017 was fixed for framing of

issues. Pursuant to our earlier order dated January 5,

2022, status report has been filed by the Judge-in-

Charge, 6th Bench, City Civil Court, Calcutta, stating

that the plaintiff no.1, on April 9, 2021, filed one

petition under Order XXII, Rule 3 of the Code of Civil

Procedure, 1908 and the said petition is fixed for

hearing on February 23, 2022.

In view of the aforesaid, we direct the learned trial

Judge to dispose of the said petition at the earliest and

thereafter to dispose of the suit as expeditiously as

possible preferably within a period of one year from the

date of disposal of the said petition without granting

any adjournment to either of the parties unless it is

unavoidable.

The views expressed by us in affirming the order of

injunction shall not influence the learned trial Judge in

deciding the suit on merits. The said views are only

prima facie and not conclusive.

The appeal being F.M.A.T. 758 of 2017 and the

connected injunction application being IA No: C.A.N. 1

of 2017 (Old No: C.A.N. 6438 of 2017) are disposed of.

Let urgent photostat certified copies of this order,

if applied for, be supplied to learned Advocates for the

parties upon compliance with all usual formalities.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)